What Are Grandparents Legal Rights To See Grandchildren?

For those of us lucky enough to have grandparents who spend time with our children, the level of happiness and joy experienced by both the grandparent and the child is immeasurable. Research has shown that playing with grandchildren fosters a sense of purpose, joy and vitality in the lives of grandparents. In addition, many families rely on grandparents for help with childcare.

Sadly, there are many families within which the relationship between a grandparent and their grandchild is restricted. There may be occasions when this is justified and even necessary, but there are many occasions when it is not.

When a marriage breaks down, grandparents often get caught in the middle and they may miss out on spending quality time with their grandchildren as a result.

This article highlights key points for grandparents to consider when seeking to establish, or re-establish, their relationships with grandchildren and factors the Court will take into account when making decisions on such issues.

What are the rights of grandparents?

Currently, grandparents do not have an automatic legal right to see their grandchildren in the event of a divorce or dissolution of marriage.

As a first step, the best approach would be to try and engage in an open and honest discussion with the parents. Grandparents can ensure they maintain contact with their grandchildren through informal agreements. If such discussions do not prove fruitful, the parents should be invited to engage in a form of non-court dispute resolution, such as mediation. For this to work however, both sides would need to be willing and engaging and it is imperative for the parent to put aside their differences with their former spouse/partner when engaging in such discussions. Similarly, the grandparent has to learn to remain impartial to the differences between the parents, even if they (quite naturally) favour their own child.

For those grandparents who still find themselves unable to move forward, despite the above approaches, there is only one thing left to do and that is to make an application to the Court. It is at this point that they should consider seeking legal advice.

The relevant application would be an application for a Child Arrangements Order under the Children Act 1989.

Mediation

Before any application can be made to the Court, grandparents have to show the Court that they have attempted mediation through attending a Mediation Information and Assessment meeting (MIAM) unless they can prove that one of the exemptions applies.

A MIAM involves a mediator, who is an independent and impartial third party, helping the family members work out an arrangement.

During the MIAM the parties tell the accredited mediator the issues at hand and what resolution they each seek. The mediator will explain the mediation process, set out other non-court dispute resolution (NCDR) options such as arbitration, evaluation by a third party and collaborative law.

Even if the parties think the MIAM is not appropriate, they must attend a MIAM (unless one of the MIAM exemptions apply) and show the Court that they have considered this before making an application to the Court. If they do not do this, their application to the court will not be issued. Even once proceedings are issued, the Court has a duty to consider, at every stage in the proceedings, whether non-court dispute resolution is appropriate.

The advantage of mediation is that it avoids costly court proceedings and it helps to resolve matters in a non-adversarial way, which in turn is likely to preserve the relationship between grandparents and parents. It is in the best interests of the children for all the important people in their lives to be able to communicate effectively and without conflict.

What happens if mediation does not work?

As grandparents do not have parental responsibility of their grandchildren, they have to first seek the permission of the court to make an application under the Children Act 1989 for a Child Arrangements Order on a Form C2.

They do not need to seek permission if:

1. the grandchild has lived with them for three years, and this need not be a continuous period, but the period must not have begun more than five years before and ended more than three months before the application is made; or
2. the grandchild has lived with them for a continuous period of one year immediately before the application is made; or
3. the grandchild is in Local Authority care and the Local Authority has consented.

When seeking permission from the Court, the following factors will be considered by a Judge:

1. the nature of the relationship between the grandparent and the child;
2. the nature of the proposed application; and
3. whether there is any risk that the application is disrupting the child’s life to such an extent that they will be harmed by it.

Alongside the C2 application seeking permission, a form C100 should be completed, which is the application in which they detail why they are making the application and what it is that they are seeking.

The child’s welfare will be the paramount consideration of the Court when making its final decision. The Court will consider the following as per the Children Act 1989, referred to as the ‘welfare checklist’:

1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
2. his physical, emotional and educational needs;
3. the likely effect on him of any change in his circumstances;
4. his age, sex, background and any characteristics of his which the court considers relevant;
5. any harm which he has suffered or is at risk of suffering;
6. how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; and
7. the range of powers available to the court under this Act in the proceedings in question.

Special Guardianship Order

Although rare, grandparents can apply for a Special Guardianship Order which is an order for their grandchildren to permanently live with them. Grandparents can apply for this order if the parents are unable to look after the children themselves and the order. A Special Guardianship Order is an alternative to a Child Arrangements Order and is in place until the child is 18.

This order will give the grandparent joint parental responsibility (PR) with any parent who has PR. Special Guardians can exercise their PR to the exclusion of others who may hold PR (i.e. parent) but not to the exclusion of another Special Guardian. They can make day to day decisions for the child, such as decisions relating to their schooling or medical treatments. The only decisions they cannot make without the consent of all those with PR is changing a child’s name or removing a child from the Jurisdiction of England and Wales for a period of three months or more.

Despite the overriding power that Special Guardians have, it is recommended that all decisions relating to a child, if possible, be made in consultation with the parents.

Our experienced family lawyers can advise you on the best approach for your situation. We can also offer mediation. Please feel free to contact our team on 0330 822 3451 for more information or to arrange an informal call.